BVA9505282
DOCKET NO. 93-00 138 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to an increased rating for post-traumatic stress
disorder, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran and D. Williams
ATTORNEY FOR THE BOARD
Thomas H. Tousley, Associate Counsel
INTRODUCTION
The veteran had active air service from March 1965 to February
1969.
This matter comes before the Board of Veterans' Appeal (Board) on
appeal of a February 1992 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in San Diego,
California. In March 1994, the Board remanded this case to the
RO for additional development of the evidence. By a rating
decision in May 1994, the RO increased the rating for the
veteran's post-traumatic stress disorder from 10 percent to 30
percent, effective in April 1994.
REMAND
The Board stated in the March 1994 remand:
Post-traumatic stress disorder was
diagnosed by a VA psychiatrist when the
veteran was examined in July 1985. The RO
granted entitlement to service connection
for post-traumatic disorder which was
assigned a 10 percent evaluation when it
promulgated a rating decision in August
1985. When hospitalized by VA during July
and August 1990, the veteran was diagnosed
with atypical psychosis and post-traumatic
stress disorder. VA psychotherapy reports
submitted in support of the current
reopened claim show that the veteran
receives treatment for psychiatric
symptomatology associated with a psychosis
and not post-traumatic stress disorder. In
an April 1992 letter, a VA psychiatrist
[James B. Lohr, M.D.] noted that the
veteran had been initially misdiagnosed
with post-traumatic stress disorder when in
fact he had chronic paranoid schizophrenia.
According to VA psychiatric records dated at the end of June
1991, the veteran obtained a job that month. In October 1991, it
was noted that he had lost that job. A treatment note dated in
January 1992 indicates he was receiving State disability
payments. The RO obtained psychiatric outpatient records for the
period up to February 1994 which indicate the veteran's treatment
focused primarily on his psychotic symptomatology. He testified
at a hearing at the RO in June 1992 that he started receiving
Social Security disability benefits in May 1992.
In addition, pursuant to the Board's request in the March 1994
remand, the veteran was examined by a VA psychiatrist, Kevin G.
Flood, M.D., in April l994, who also reviewed the veteran's
medical records. The Board notes that the psychiatric
nomenclature adopted by the VA is based on the Diagnostic and
Statistical Manual of Mental Disorders, Third Edition (DSM-III).
38 C.F.R. § 4.125 (1994). DSM-III employs a multi-axial system
of evaluation of psychiatric symptomatology. In this case, on
Axis I, the psychiatrist diagnosed post-traumatic stress
disorder, moderate in severity, and schizophrenia, paranoid type,
chronic. On Axis V, the examiner assigned a score of 35 on the
global assessment of functioning (GAF) scale. This score
represents major (more than moderate) impairment in several areas
of functioning, such as at work or school, in family relations,
and in judgment, thinking, or mood. See Quick Reference To The
Diagnostic Criteria From DSM-III-R (1987) at 23.
The VA psychiatrist noted that there had been conflicting
psychiatric diagnoses in the veteran's case. The VA psychiatrist
opined:
The veteran is suffering from two Axis I
diagnoses, which are related. He has had
post-traumatic stress disorder, apparently
for a number of years, and now has a
chronic paranoid schizophrenia which is
worsened by post-traumatic stress disorder,
and also worsens his post-traumatic stress
disorder.
Based on the psychiatric symptomatology attributable to post-
traumatic stress disorder that was reported by the veteran to the
VA psychiatric examiner in April 1994, the Board determines that
the veteran has submitted a well-grounded claim for an increased
evaluation for post-traumatic stress disorder within the meaning
of 38 U.S.C.A. § 5107(a) (West 1991). Once the veteran has
submitted a well-grounded claim, the VA has a duty to assist him
in the development of his claim. Gilbert v. Derwinski, 1
Vet.App. 49, 55 (1990). If service connection has been
established only for one psychiatric disorder for a veteran who
has two psychiatric disorders, the VA must separate the
psychiatric symptomatology attributable to each disorder in order
to properly evaluate the veteran's claim for an increased rating.
See Webster v. Derwinski, 1 Vet.App. 155, 159 (1991).
However, in this case, the Board is unable to effectively rate
the veteran's service-connected post-traumatic stress disorder
because the Board is unable to determine whether the veteran has
two separate, unrelated psychiatric disorders based on the
conflicting medical opinions from Dr. Lohr and Dr. Flood. Dr.
Lohr opined the veteran does not have post-traumatic stress
disorder, but assumed service connection was also in effect for
schizophrenia even though it was first diagnosed several years
following service. In addition, it is unclear to the Board
whether Dr. Flood opined that the veteran's post-traumatic stress
disorder and schizophrenia affected the severity of each other,
or that schizophrenia resulted from the service-connected post-
traumatic stress disorder. The duty to assist includes the
obtaining of a thorough and contemporaneous examination to remove
any diagnostic doubt that considers the records of prior medical
examinations and treatment. Green v. Derwinski, 1 Vet.App. 121,
123-124 (1991).
In January 1995, the veteran's representative asserted that the
veteran's schizophrenia represented a maturation of the veteran's
post-traumatic stress disorder. The Board construes this
statement as a claim for service connection for schizophrenia.
In light of the VA outpatient records showing treatment primarily
for psychotic symptomatology, the GAF score assessed by the VA
psychiatrist in April 1994, the evidence that the veteran has
been found to be totally disabled by the Social Security
Administration, and the evidence that the veteran has not worked
since October 1991, the resolution of this service connection
claim is important in resolving the increased rating claim
presently before the Board. The Board determines that the claim
for service connection for schizophrenia is inextricably
intertwined with the claim for an increased rating for post-
traumatic stress disorder. See Harris v. Derwinski, 1 Vet.App.
180, 183 (1991). Although the VA is not bound by a disability
determination by the Social Security Administration, the decision
is evidence that must be considered by the VA when making its own
disability determination. Masors v. Derwinski, 2 Vet.App. 181,
188 (1992).
Accordingly, the case is REMANDED to the RO for the following
action:
1. After obtaining the proper
authorization from the veteran, the RO
should obtain a copy of the decision by the
Social Security Administration that
determined the veteran was disabled for the
purpose of entitlement to disability
benefits, and also the records upon which
the decision was based, including medical
records and any report of a vocational
assessment. All Social Security
Administration records obtained should be
associated with the claims folder.
2. The RO should obtain and associate with
the claims folder all VA medical records
since March 1994.
3. Once the action requested in the
indented paragraphs above has been
completed, the RO should schedule the
veteran for a comprehensive VA psychiatric
examination. The study should be conducted
in accordance wit the VA Physician's Guide
for Disability Evaluation Examinations
(1985). All indicated tests, including
psychological studies with applicable
subscales, should be conducted if
determined to be appropriate by the
psychiatric examiner. The claims folder
should be made available to and reviewed by
the examiner prior to the requested study.
The examiner is requested to use the multi-
axial system of diagnosis and to assign a
GAF score in accordance with DSM-III-R, and
to explain what the GAF score represents.
Based on a review of the claims folder and
the examination findings, the examiner is
also requested to offer an opinion
regarding the following questions: (1) Do
post-traumatic stress disorder and
schizophrenia both currently exist? (2) If
so, is the schizophrenia etiologically
related to the veteran's post-traumatic
stress disorder? (3) If the schizophrenia
is not etiologically related to post-
traumatic stress disorder, is it related to
the veteran's service? (4) What is the
severity of each diagnosed psychiatric
disorder? (5) How and to what extent does
each diagnosed psychiatric disorder affect
the veteran's ability to work? A complete
rationale for any opinion expressed is
requested. Therefore, the claims folder
must be made available to the examiner
prior to the examination.
4. After the action requested in all of
the above indented paragraphs has been
completed, the RO should adjudicate the
claim for service connection for
schizophrenia and the claim for an
increased rating for post-traumatic stress
disorder. The RO should directly address
the finding of disability by the Social
Security Administration and determine
whether an increased rating is warranted on
an extra-schedular basis under 38 C.F.R.
§ 3.321(b)(1) (1994).
5. If the RO denies the claim for service
connection for schizophrenia, the veteran
must file a timely notice of disagreement
and substantive appeal before the service
connection issue can be considered by the
Board. If the veteran files a timely
notice of disagreement with the denial of
the service connection claim, the veteran
and his representative must be provided
with a supplemental statement of the case
that includes the appropriate laws and
regulations regarding service connection.
In any event, if the RO denies the claim
for an increased rating for service-
connected post-traumatic stress disorder,
the veteran and his representative must be
provided a supplemental statement of the
case and allowed the applicable period of
time to respond thereto before the record
is returned to the Board.
The purpose of this REMAND is to adjudicate an intertwined claim
for service connection for schizophrenia, and to assist the
veteran in the development of his two claims. The Board does not
intimate any opinion as to the merits of this case, either
favorable or unfavorable, at this time. No action is required of
the veteran until he is notified.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).